EXHIBIT 10(m)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), effective as of the 15th Day of
November, 2000, by and between Power Technology, Inc. a Nevada corporation
with principal offices at 0000 Xxxx Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000
("Company"), and Hanover Engineering & Consulting Limited, a company doing
business at Xxxxxxxxxxxxx 00-00, Xxxxxxx, X-00000 Xxxxxxx ("Consultant").
PREMISES
A. Consultant has numerous business contacts and is familiar with
business conditions, contracts and opportunities throughout Europe.
B. Company is developing new battery technology and is interested in
developing a business presence in Europe.
C. Consultant desires to enter into a written agreement to serve as a
consultant to Company.
D. Company desires to secure the services of Consultant and to protect
its interest by obtaining comprehensive covenants from Consultant
not to compete with Company not to divulge Company's confidential
information.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreement contained herein, and for other good and valuable consideration,
the receipt and adequacy of which is expressly acknowledged hereby, Company
and Consultant agree as follows:
1. ENGAGEMENT OF CONSULTANT
Company hereby retains Consultant to serve as consultant to Company in the
following area:
A. Identify potential acquisition candidates with related
technologies;
B. Provide market research as to development of related technology
by competing European companies;
C. Distinguish potential joint venture partners within Europe;
D. Evaluate the availability of European research facilities;
E. Investigate the Company's eligibility for European Union and State
government funding for new technologies; and
F. Perform such other services that the Company's board of directors
should reasonably request over the term of this Agreement.
The foregoing services collectively are referred to herein as the "Consulting
Services".
2. TERM OF AGREEMENT
This Agreement shall have a term of three (3) month commencing on the
effective date of this Agreement ("Term of Agreement").
3. COMPENSATION
A. For Consulting Services rendered during the Term of the
Agreement, Company agreed to pay the Consultant five hundred
thousand (500,000) free trading shares pursuant to available
exemption from the registration requirements of the Securities
Act of 1933.
B. If Company requests Consultant to perform other services not
herein described or provided for, Company shall compensate
Consultant as may agreed to by the parties in connection with
those specific services.
4. COSTS AND EXPENSES
Except as expressly provided otherwise in this Agreement, Company and
Consultant agree that each party shall be fully and separately responsible
for their own expenses incurred in fulfilling their respective obligations
under this Agreement, including both direct and indirect expenses. Neither
party shall be responsible for the expenses of the other without the advance
written agreement of the other party.
5. COMPLIANCE AND INDEMNITY
A. Consultant agrees and acknowledges responsibility for full
compliance with all state and federal laws and regulations
including all applicable regulations of the Security and Exchange
Commission while engaged in the performance of the Consulting
Services.
B. Inside Information, Securities Laws Violations. In the course
of the performance of its duties, Consultant may become aware
of information, which may be considered "inside information"
within the meaning of the securities laws, rules and
regulations. Consultant acknowledges that its use of such
information to purchase or sell securities of Company, or its
affiliates, or to transmit such information to any other party
with a vew to buying, selling or otherwise dealing in Company's
or its affiliate's securities is prohibited by law and would
constitute a breach of this Agreement.
6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
In consideration for the Company entering into this Agreement, Consultant
agrees that the following items (items listed in Subsection A-D below
collectively will be referred to as "Confidential Information") used in the
Company's business are secret, confidential unique, and valuable, were
developed by the Company at great cost and over a long period of time, and
disclosure of the Confidential information to anyone other than the Company's
officers, agents, or authorized employees will cause Company irreparable
injury.
A. Non-public information, accounting information, plans of
operations, possible mergers, or acquisitions prior to the
public announcement;
B. Contact lists, call lists, and other confidential customer data;
C. Memoranda, notes, and records concerning the technical
information accumulated by Company; and
D. Sketches, plans, drawings and other confidential explorations
and development data.
Consultant agrees that it will not, directly or indirectly, during or after
thee term of this Agreement disclose any Confidential Information to anyone
not authorized by Company to receive or use such information.
7. COVENANT NOT TO COMPETE
During the Term of this Agreement and for a period of one (1) year following
termination of this Agreement, except in the case of a breach of this
Agreement by Company, Consultant agrees not to engage in, assist, perform
services for or assist any other person, firm partnership, corporation or
other business entity (whether as an employee, agent, officer, director,
security holder, owner, creditor, consultant or otherwise) that engages in or
proposes to engage in any business with clients of Company or any other
business or business opportunity that Company contemplates entering into and
was not introduced to Company by Consultant. Consultant understands and
acknowledges that this covenant not to compete is reasonable in scope because
the business opportunities are not confined to any particular product or
geographic market.
8. BEST EFFORT BASIS
Consultant agrees that it will at all times faithfully and to the best of its
experience, ability and talents, perform all the duties that may be required
of and from Consultant pursuant to the terms of this Agreement. Consultant
does not guarantee that its efforts will have any impact on Company's
business or that any subsequent financial improvement will result from
Consultant's efforts. Company understands and acknowledges that the success
or failure of Consultant's efforts will be predicated on Company's assets and
operating results.
9. COMPANY'S RIGHT TO APPROVE TRANSACTIONS
Company expressly retains the right to approve, in its sole discretion, each
and every transaction introduced by Consultant that involves Company as a
party to any agreement. Consultant and Company mutually agree that
Consultant is not authorized to enter into agreements on behalf of
Company.
10. COMPANY UNDER NO DUTY OR OBLIGATION TO ACCEPT OR CLOSE ON ANY TRANSACTIONS.
It is mutually understood and agreed that Company is not obligated to accept
any proposal or close any agreements submitted by Consultant.
11. REMEDIES ON DEFAULT
If, at any time, Consultant materially breaches any of the provisions on
Paragraph 6 or 7, Company shall have the right to terminate this Agreement.
Consultant understands and acknowledges that monetary damages to Company for
a material breach of provisions 6 or 7 may be difficult to determine and may
not adequately compensate Company. Therefore, Consultant agrees and consents
that in the event of a material breach or threatened breach of Paragraph 6 or
7, Company, in addition in equity for an injunction against the breach or
threatened breach.
12. WORK STOPPAGE OR EARLY TERMINATION
Company shall have the right, at any time, to direct Consultant to cease work
or abandon its efforts on Company's behalf, and to refrain from commencing
any new work or providing any further Consulting services hereunder. If this
Agreement is terminated pursuant to this section or canceled pursuant to
Paragraph 2, Company shall pay Consultant only for the services rendered
through the date of cancellation or termination.
13. NON-EXCLUSIVE SERVICES
A. Company acknowledges that Consultant is currently providing
services of the same or similar nature to other parties and
Company agrees that Consultant is not prevented or barred from
rendering services of the same nature or similar nature to any
other individual or entity. In addition, Consultant may
independently and at its sole cost and expense act as a
principal in some or all of the projects or other business
opportunities introduced to Company by Consultant. However,
Consultant will always inform Company in writing that
Consultant is acting as a principal.
B. Consultant understands and agrees that Company shall not be
prevented or barred from retaining other persons or entities to
provide services of the same or similar nature as those
provided by Consultant. Consultant will advise Company of its
position with respect to any activity, employment, business
arrangement, or potential conflict of interest, which may be
relevant to this Agreement.
14. ALL PRIOR AGREEMENTS TERMINATED
This Agreement constitutes the entire understanding of the parties with
respect to the
engagement of Consultant, and all prior agreements and understandings with
respect thereto are hereby terminated and shall be of no force or effect.
15. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
Consultant hereby represents and warrants to Company that:
A. Legal Purposes. In the course of the performance of his
duties, Consultant will not violate any federal or state
securities laws or cause the violation of such.
B. Subsequent Events. Consultant will notify Company if,
subsequent to the date hereof, Consultant incurs obligations,
which could compromise his efforts, and obligations under this
Agreement.
16. CONSULTANT IS NOT AN AGENT OR EMPLOYEE.
Consultant's obligations under this Agreement consist solely of providing the
Consulting Services. In no event shall Consultant be considered the employee
or agent of Company and shall not have authority to represent or bind
Company. For purposes of this Agreement, Consultant is an independent
contractor. All final decisions with respect to acts of Company or its
affiliates, whether or not made pursuant to or in reliance on information or
advice furnished by Consultant hereunder, shall be those of Company or
Company's affiliates and under no circumstances shall Consultant be liable
for any expense incurred or loss suffered by Company as a consequence of such
action or decisions. Consultant agrees that he will not represent to any
person, entity, or organization that he is an employee or agent of Company or
has the power to represent or bind Company in any respect unless Company's
board of directors so empowers him. Consultant shall be solely liable for
the payment of any taxes arising out of the payment of compensation under
this Agreement.
17. MISCELLANEOUS.
A. Authority. The execution and performance of this Agreement has
been duly authorized by all requisite corporate action. This
Agreement constitutes a valid and binding obligation of both
parties.
B. Amendment. This Agreement may be amended or modified at any
time and in any manner but only by an instrument in writing
executed by both parties.
C. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights
and remedies provided by law or contract. No delay or failure
on the part of either party in the exercise of any right or
remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a
subsequent breach of this Agreement. The consent of any party
where required hereunder to any act or occurrence shall not be
deemed to be a consent to any other act or occurrence.
D. Assignment.
(i) Neither party shall assign nor convey any right under this
Agreement without the prior written consent of the other;
and
(ii) Nothing in this Agreement, expressed or implied, is intended
to confer upon any person, other than the parties and their
successors, any rights or remedies under this Agreement.
E. Notices. Any notices or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United States
mails for transmittal by certified or registered mail, postage
prepaid, or when deposited with a public telegraph company for
transmittal charges prepaid or when sent by facsimile
transmission, provided that the communication is addressed:
(i) In the case of Consultant, to:
Hanover Engineering & Consulting Limited
Xxxxxxxxxxxxx 00-00
D-30451 Hanover, Germany
(ii) In the case of Company, to:
Xxx Xxxxx
Power Technology, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000, XXX
or to such person or address designated by the parties to receive
notice.
F. Headings and Captions. The headings of paragraphs are included
solely for convenience. If a conflict exists between any
heading and the test of this Agreement, the text shall control.
G. Multiple Counterparts. This Agreement may be executed in any
number of counterparts but the aggregate of the counterparts
together constitute only one and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or
more of the provisions contained in this Agreement shall be
held to be invalid, illegal, or unenforceable in any respect
and for any reason, including specifically, any term condition,
clause or provision set forth in Paragraphs 6 or 7, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be
construed as if it never contained such invalid, illegal or
unenforceable provisions.
I. Controlling Law. The validity, interpretations and performance
of this Agreement shall be controlled by and construed under
the laws of the State of Nevada and in the English language.
J. Attorney's Fees. If any actions as law or in equity, including
an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees
from the other party. The attorneys' fees may be ordered by
the court in the trial of any action described in this
paragraph or may be enforced in a separate action brought for
determining attorneys' fees.
K. Time is of the Essence. Time is of the essence for each and
every provision of this Agreement.
L. Mutual Cooperation. The parties shall cooperate with each
other to achieve the purpose of this Agreement. At any time
and from time to time, each party agrees, at its or their
expense, to take actions and to execute such other and further
documents and take such other actions as may be reasonable
necessary or convenient to effect the purpose of this Agreement.
M. Indemnification. Company and Consultant agree to indemnity,
defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs
and expenses, including without limitation, interest, penalties
and attorneys' fees and expenses asserted against or imposed or
incurred by either party by reason of or resulting from a
breach of any representation, warranty, covenant condition or
agreement of the other party to this Agreement.
N. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission and any
other person may rely upon the electronic facsimile as a signed
original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
this 15th Day of November, 2000.
POWER TECHNOLOGY, INC.
/s/ Xxx Xxxxx
-----------------------------
President
HANOVER ENGINEERING & CONSULTING LIMITED
/s/ Xx. Xxxxx Xxxxxx
-----------------------------
President
